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COMMONWEALTH v. BOSTICK (11/13/69)

decided: November 13, 1969.

COMMONWEALTH
v.
BOSTICK, APPELLANT



Appeal from order and judgment of Court of Common Pleas of Philadelphia County, June T., 1959, Nos. 1237, 1238, 1239, and July T., 1959, Nos. 227 to 233, inclusive, in case of Commonwealth v. Ezzie Bostick.

COUNSEL

Abraham J. Brem Levy, for appellant.

Paul R. Michel and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm the order of the court below.

Author: Hoffman

[ 215 Pa. Super. Page 489]

Appellant and James Hampton were indicted on Bills Nos. 1237 through 1239, June Sessions, 1959, charging aggravated robbery. Appellant alone was indicted on Bills Nos. 227 through 233, July Sessions, 1959, charging aggravated robbery. Both defendants were represented by one attorney from the Defender Association of Philadelphia.

Appellant pleaded guilty and James Hampton pleaded not guilty to Bills Nos. 1237 through 1239, June Sessions. Appellant pleaded not guilty to Bills Nos. 227 through 233, July Sessions.

At trial, appellant testified on behalf of Hampton and attempted to exonerate him from complicity in the crime. Despite appellant's testimony, Hampton was convicted. Appellant was then convicted on the bills to which he had pleaded not guilty.

At sentencing, the voluntary defender moved for withdrawal of his appearance for appellant on the ground that he could not effectively represent both defendants, whose interests, he said, were in conflict. The lower court denied the motion. No appeal from judgment of sentence was taken. Subsequently, appellant brought a P.C.H.A. petition which was denied.

This appeal questions whether counsel may represent two co-defendants, one of whom pleads guilty and

[ 215 Pa. Super. Page 490]

    one of them pleads not guilty, to charges upon which they are jointly indicted.

When counsel's representation is thus attacked, because of an alleged conflict of interest, our thinking is guided by the standards set forth by the Supreme Court in Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). Whitling sets up a prophylactic rule to prevent possible injury to criminal co-defendants. If counsel has a conflict of interest in his representation of two co-defendants, we are required to reverse the convictions of the injured parties without a detailed examination of the record. If there is a "possibility of harm," it is incumbent upon us to assure that the ...


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